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TMI Blog1997 (6) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... the pre-deposit of the amount of duty : "The ground that the appellant has a strong case is urged by every appellant and that is the reason why, based on their belief, they file an appeal. It is not a ground sufficient enough to grant waiver of pre-deposit unless, in addition, the appellant is able to establish that pre-deposit would cause undue hardship to them." 2.During the course of hearing today, the parties agreed that this petition may be finally disposed of today itself without inviting the respondents to file the affidavit-in-opposition. Since, however, the affidavit-in-opposition has not been filed, as I observed, that none of the allegations in the writ petition shall be deemed to have been admitted by the respondents. 3.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hardship is a term which may vary from case to case and in every case the appellant has to satisfy the appellate forum that, if it is required to deposit the amount of duty or the penalty, such requirement shall cause undue hardship to the appellant. 4.In the case of Vijay Prokash D. Mehta and Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay, 1989 (39) E.L.T. 178 (S.C.) = AIR 1988 S.C. 2010, Their Lordships of the Supreme Court observed while dealing with Section 129E of the Customs Act, which is pari materia to Section 35F of the Central Excises and Salt Act, 1944, that the proviso gives the discretion to the authority to dispense with the obligation to deposit in case of undue hardship and that such discretion must be exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the discretion to dispense with the deposit should be exercised judiciously based on relevant factors and circumstances, prima facie case is one such. That prima facie case is relevant in this context is the ratio of the decision in Hari Fertilisers v. Union of India, 1985 (22) E.L.T. 301 (Allahabad). In Re : America Refrigeration Co. Ltd., 1986 (23) E.L.T. 74 (Calcutta) and in Thampi v. Collector of Central Excise, 1987 (1) KLT 562 of this Court, all rendered under the analogous provisions of the Central Excises and Salt Act, 1944." 6.A bare look at the impugned order dated 27-5-1997 passed by the respondent No. 1 suggests that he did not take into account all the relevant factors while deciding the question relating to the prayer of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take a view, at the stage of admission of appeal or at the stage of an application seeking dispensation of deposit that the order appealed against patently suffered from legal infirmittes, this is a highly determinative factor for the appellate forum to consider while deciding the question as to whether the appellant was to be granted the relief of dispensation of deposit of the amount in question. Unfortunately, however, in the manner the impugned order has been granted or passed by the ld. Commissioner he did not take into consideration all these relevant factors, thus resulting in miscarriage of justice. 7.I am of the view, however, that this Court while exercising its writ jurisdiction should not itself embark upon the enquiry rela ..... X X X X Extracts X X X X X X X X Extracts X X X X
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